Missing votes and the preference lotto

Once a recount is ordered, the original result is void, so there is no going back.

ABC News: Kathy Lord

While electronic voting seems like the obvious solution to the problem of missing votes, for now reform is more likely to look at the preference system which led to the election count being so vulnerable to the loss of a relative handful of votes, writes Robert Hoffman.

Sometimes people make mistakes. Sometimes elections are close. Very occasionally both happen at the same time. Such is the unfortunate case in Western Australia.

During a recount of the WA Senate contest, the Australian Electoral Commission discovered it had misplaced some 1,375 votes. In context, this is a small quantity. With some 1.3 million votes cast in WA alone, it amounts to 0.1 per cent of the vote. Unfortunately, the election hinged on an even smaller number - a mere 14 votes.

These things do happen. Witness the contest in the Victorian seat of Indi, where independent Cathy McGowan toppled Liberal shadow minister Sophie Mirabella. McGowan seemed headed for an agonisingly close defeat, until a bundle of 1,000 misplaced votes resurfaced, nudging her back into the lead. The sheer quantity of paper involved means that accidents such as these are almost bound to happen. It is however rare that such a mistake has had such broad implications.

Our preferential voting system means the order in which candidates are eliminated can have profound consequences. As the candidates with the lowest number of votes are excluded, preferences cascade through the remaining candidates.

The critical juncture in WA came at the 139th step in the original count, when those 14 votes separated the Shooters and Fishers and Australian Christians candidates. While neither would be elected, and indeed neither attracted more than 2 per cent of the first preference vote, a combination of the build-up of inherited preferences and the other candidates remaining in the count meant whichever was eliminated first would have a profound impact on the outcome.

With the Australian Christians being eliminated, the flow of preferences meant Labor and Palmer United candidates were provisionally elected. Had the Shooters and Fishers been squeezed out, it would have been the Greens and the Australian Sports Party claiming seats. In the House of Representatives, any margin below 100 votes triggers an automatic recount. There is no such provision for the Senate, but given this closeness, the Australian Electoral Commissioner was right to order one, following requests from the unsuccessful candidates.

With the recount completed, minus a few votes, the result has changed, with Scott Ludlam of the Greens and Wayne Dropulich of the Australian Sports Party now provisionally elected. This is not necessarily a consequence of the lost votes though, as simple counting errors and disagreements about the correct casting of particular votes are common enough to change such a narrow result on recount.

So, what will happen now? Clive Palmer has demanded the original result stand, as he would, given it saw one of his senators elected. However, once a recount is ordered, the original result is void, so there is no going back. A court challenge will surely ensue, given the parties involved - Ludlam of the Greens, Louise Pratt of the ALP, and the deep pockets of Palmer. It is possible, even probable, that the High Court will order a new, state-wide Senate election, with all six Western Australian positions again up for grabs.

Given the tight numbers in the Senate, this could have significant implications for the balance of power in the new Parliament, so will be fiercely contested. As new senators do not take their seats until July 1, 2014, there is however some time to sort this out. To its credit, the Australian Electoral Commission has already ordered an inquiry into the episode, but it will also face heavy scrutiny from Parliament's regular inquiry into the conduct of the preceding election. It is through this process that policy responses are formulated. So what can we expect?

The obvious solution to problems of counting (and losing) votes is some sort of electronic voting. However, electronic voting brings its own suite of problems - beyond the significant costs and challenges of developing and introducing a new system, the simple reality is that people will break it for fun and profit, with far greater consequences than the loss of a relative handful of votes. This has been the case throughout the world and there is no reason to believe Australia will be any different.

However, electronic voting of some sort seems inevitable. The Electoral Council of Australia and New Zealand, the peak collaborative body of our electoral commissions, recently released a discussion paper calling for consideration of the opportunities and challenges inherent in any shift. Any such move will only occur after careful and thorough deliberation however, and in the mean time we must accept that occasional mishaps will occur.

More immediate prospects for reform reflect on the features of the system that led it to being so vulnerable to the loss of a relative handful of votes. The importance of small quantities of preferences is a reflection on the proliferation of minor parties, driven by dissatisfaction with the major options, the long lead time to this election, but most importantly the above the line ticket voting system. With up to 110 candidates nominating for election in an individual state, few voters fill out complete sets of preferences. Rather, the vast majority assign their first preference to a party above the line, with further preferences flowing according to that party's preference ticket. With so many alternative options being available, preference deals were carefully negotiated that saw votes progressively collected until the luckiest of the unknowns was in a position to challenge major party candidates.

Micro-parties being elected is not necessarily a bad thing, and indeed a broader representation in Parliament is indicative of a healthy democracy. However, contention is natural when senators are elected from primary votes of 0.2 per cent as Dropulich has now been in WA, or 0.5 per cent as the Australian Motoring Enthusiasts Party's Ricky Muir was in Victoria. It is questionable how democratic a system is when voters are handing over their preferences to parties they have likely never heard of, especially given it has become apparent following the election that a number of these micro-parties were essentially fronts, set up to funnel preferences to parties that voters may have had no desire to vote for.

Given the number of surprise wins at the expense of incumbent senators, it seems likely that the larger parties in Parliament will soon move to defend their turf. Options floated include stiffening party registration requirements or introducing vote thresholds, which would exclude parties from election if they did not achieve a given percentage of the first preference vote.

Most likely however is a move to some sort of preferencing above the line, giving individual voters easier control of where their preferences end up. Such a move would kill preference gaming overnight, with a consequent end to the vast number of entrants to the preference lotto.

The growing protest vote is however a persistent reality. No amount of electoral reform will eliminate the growing dissatisfaction with politics as usual.

Robert Hoffman researches and teaches politics at the Swinburne Institute for Social Research, Swinburne University of Technology. He is also newsletter editor at the Electoral Regulation Research Network. View his full profile here.